1Q18

One of my favourite series of books in recent years, is the sequence 1Q84 by Haruki Murakami, in which his protagonist makes a wrong turn and leaves the real world, and slips into a parallel one, where everything is subtly different, stranger and more sinister. Over three books she seeks to return to her own world.

It seemed to me that something similar happened to the entire country, when the result of the Brexit referendum was announced in June 2016.

Although this blog eschews party politics and maintains a rigid political neutrality, I have watched with fascination this week how the United Kingdom’s Brexit policy has been “finally” formulated, only to come close to collapse with a series of high profile resignations of government ministers. At what point does tragedy become farce?

People’s views may differ on the Leave/Remain issue, but I don’t think anyone can feel that the current political situation is satisfactory, and there is a now a huge uncertainty, as to whether the Chequers consensus might fracture completely, and with it the government.

In terms of the world of costs this matters because of the political complexion of the government and what it means for the legal sector : it is readily apparent to anyone who considers recent history that the Conservative government and before them the Coalition government was pursuing a policy of “tort reform” redolent of the policy of the Republican party in the United States. The aim was to reduce burdens on business, accepting the philosophy that litigation and legal costs were not a “public good” but an economic cost. This is a  point of view: the legal system of England and Wales, is notoriously expensive when compared with other jurisdictions around the world.

The government moved forward with reforms in a number of areas: the removal of civil liability for breach of statutory duty in section 69 of the Enterprise Regulatory Reform Act 2013, the introduction of fees in the Employment Tribunals, most recently the kneejerk reaction to the surge in dubious holiday sickness claims met with a Protocol and fixed costs and above all, the Legal Aid Sentencing and Punishment of Offenders Act 2012.

The counter argument that the redistributive power of court awards achieved through litigation is a form of economic efficiency through ensuring adverse costs imposed on the public, the charging of economic rents or economic free riding is curtailed was either stifled, ignored or discounted.

On the horizon is another significant piece of legislation, which constitutes almost the last link in the chain of tort reform projects: the Civil Liability Bill. The bill if it becomes law, will effectively remove lawyers from the prosecution of whiplash claims from road traffic accidents, and lead to significantly reduced multipliers reducing the awards of damages in serious personal injury cases. As part of the “package” the Small Claims track limit will be raised, which will again remove from lawyers, involvement in a tranche of small personal injury claims.

The reforms are controversial. The Bill itself as initially introduced was almost a shell, with key provisions to be fleshed out by statutory instruments, some way down the road. It took the use of Henry VIII clauses to a new level, in a way that was redolent of the former social security legislation of the 1980s. But this was in the context of the effective abolition of longstanding common law rights and a transfer of power away from the judicial arm of the state, to the executive, via the legislature.

The progress of the Bill is dependent on the current government remaining in power. The government has a fragile majority due to an uneasy alliance with a minority party. If the government falls, then the Bill will fall with it. It is not just political pundits who should be studying the self-immolation of the Conservative party, but personal injury lawyers too.

Herge: What would one of the giants of European literature have made of it all?

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